Styles v The Queen
[2021] NZHC 1957
•30 July 2021
ORDER PROHIBITING PUBLICATION OF CERTAIN EVIDENCE, SUBMISSIONS AND PASSAGES OF THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011 AS OUTLINED IN PARA [17]. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-485-52
[2021] NZHC 1957
UNDER the Criminal Procedure Act 2011 IN THE MATTER
of an application for Suppression Orders
BETWEEN
DOUGLAS STYLES
Appellant
AND
THE CROWN
Respondent
Hearing: 29 July 2021 Appearances:
S J Fraser for the Appellant
J A Eng and S Trounson for the Respondent
Judgment:
30 July 2021
JUDGMENT OF COOKE J
(Suppression orders)
[1] The appellant seeks suppression orders under s 200 of the Criminal Procedure Act 2011 in connection with his appeal to this Court.
[2] On 18 January 2018 the appellant received a sentencing indication which he subsequently accepted. He was convicted of blackmail,1 and accessing a computer system with intent to cause loss.2 On 21 March 2018 he was sentenced to 100 hours’
1 Crimes Act 1961, ss 237(1) and 238 (maximum penalty 14 years’ imprisonment).
2 Crimes Act 1961, s 249 (maximum penalty 5 years’ imprisonment).
STYLES v THE CROWN [2021] NZHC 1957 [30 July 2021]
community work and nine months’ supervision. The nature of the offending was described in the following way in the sentencing indication:
[5] The short facts are that Mr Styles’ company, which is a company owned entirely by him, sent an email to the chief executive officer of a hotel which the defendant knew of. The email stated that if the hotel failed to transfer over a million dollars into the bank account of the company he would release information which was described as nefarious and sadistic purposes about the hotel. This was back in July last year.
[3] The Judge described this as a “relatively unsophisticated blackmail attempt”. The second charge arose from him making an internet booking at the hotel changing the price so that he booked the room for $1.
[4] The appeal, which includes an application for leave to file out of time, was filed on 15 July 2021. It covers a number of grounds, but as I understand it the essential point is that the appellant should have been discharged without conviction.
[5] In support of an application for name suppression the appellant has filed an affidavit dated 4 May 2021. Counsel has also provided the Court with a decision of District Court dated 21 April 2021 under the Mental Health (Compulsory Assessment and Treatment) Act 1992 concerning a further period of compulsory assessment and treatment that the appellant is currently undergoing.
Jurisdiction to make orders
[6] The Crown raised a preliminary question as to whether there is any jurisdiction for the Court to make suppression orders given that none were made in the lower Court, particularly suppression orders on an interim basis.
[7] The ability to make orders of the kind sought is regulated by s 200 of the Criminal Procedure Act 2011. Under s 200(2)(a) the Court may make suppression orders if publication would cause extreme hardship to the defendant. Under s 200(4) the Court can make interim orders when the defendant first appears before the Court if the defendant establishes an arguable basis for suppression. Then under s 200(5) the interim order expires unless the Court is satisfied at the subsequent hearing that one of the grounds exists. In other words interim orders can be obtained on an arguable
basis, but at the next appearance the higher standard for granting suppression must be made out.
[8] The first question is whether suppression orders can be made later in the proceedings, including on an appeal, when no such orders have earlier been made.
[9] There is nothing in s 200 that suggests that a Court cannot make a suppression order in the terms of the section if suppression has not earlier been made. The fact that suppression has not earlier been made, particularly where there is already some publicity about the potentially protected person, will be a relevant consideration. But there is plainly still jurisdiction to make an order.
[10] A more difficult question is whether the Court can make an interim order — that is on the basis that the ground for suppression is arguable only — at a later hearing. In Stuff v W Simon France J dealt with that issue, with particular focus on when interim suppression was sought at a second appearance and not the first.3 He said:
[15] … [It] is an error to view name suppression as something that only enables a defendant to avoid being held to public account. The bulk of name suppressions have little to do with protecting a defendant’s identity for the defendant’s personal interests. Many name suppressions are in place to protect the identity of victims and young persons. These are statutorily mandated suppressions. Next, a large number of name suppressions, almost always temporary in nature until the trial is ended, are to protect fair trial rights. That is not a personal interest but a public interest, and one which is accorded the highest value within the criminal justice system. The obligation on a Court to give effect to these values is not to be thwarted by too literal a reading of s 200(5) of the Act.
[16] Against that background it would be wrong to read the legislation as removing the Court’s inherent powers to control its process, and ensure that values such as fair trial rights, and the privacy of victims, are properly protected. If in order to do that the Court is required to defer a decision to enable a proper hearing and consideration, I do not consider s 200(5) prevents that.
[11] In DV v AB Mallon J also acknowledged that view of the positions.4 I generally agree with this approach. The text of the enactment must be interpreted in light of its purpose. Subsections (4) and (5) of s 200 can sensibly be read to allow an order to be
3 Stuff v W [2019] NZHC 2988.
4 DV v AB [2021] NZHC 1077 at [70].
made on an interim basis at the first appearance where suppression is raised provided that suppression is addressed substantively at a further hearing of the Court. To read the provisions otherwise would not be consistent with their purpose.
[12] In the present case, however, a one hour hearing was scheduled to address the appellant’s application for name suppression. In those circumstances it seems to me that the appellant must satisfy the Court of extreme hardship under s 200(2)(a), and that it is insufficient to show only an arguable case. The hearing before me is not in the nature of a first call, but a substantive fixture to address the question of name suppression. It follows that the higher standard should be met, even though any order the Court makes can later be reviewed.
Approach to suppression orders
[13] The principles involved in potential suppression under s 200 and the related provisions are well settled. As the Supreme Court said in Erceg v Erceg, the principle of open justice is one of constitutional importance which is fundamental to the common law system of criminal justice.5 The Court of Appeal said in R v Liddell the starting point is always of importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report proceedings fairly and accurately on behalf of the public.6 I proceed to consider the establishment of the grounds under s 200 on that basis.
[14] As I apprehend it there are two related grounds for suppression that are advanced.
Sexual matters
[15] [15]
[16] [16]
[17] [17]
5 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
6 R v Liddell [1995] 1 NZLR 538 at 546.
Mental health issues
[18] I see greater force in Mr Fraser’s second related argument. As is outlined in the appellant’s affidavit, on 19 April 2021 he was admitted to a psychiatric institution for assessment and treatment. Subsequently Judge Tompkins has ordered that he continue to be assessed recording that he is suffering from PTSD and bipolar disorder. I note that this goes further than the psychiatric report that was prepared for sentencing, where Dr Barry-Walsh advised that the appellant might be suffering from an autistic spectrum disorder.
[19] Mental health concerns of this kind, particularly those that result in distress to the person involved, can establish a basis for a conclusion that publication could cause extreme hardship to the person involved under s 200(2)(a).
[20] I nevertheless accept Mr Eng’s point based on the decisions of the Court of Appeal in Santos v R7 and D (CA443/2015) v Police8 that there is a high standard to be met in cases of this kind where suppression is sought because of the impacts on a defendant suffering from mental health difficulties. In Santos the Court of Appeal summarised the following principles arising from D (CA443/2015) v Police:9
(a)The possibility of self-harm or suicide always gives a court cause for anxious consideration. Suicide would be a devasting and unacceptable consequence of publication and it cannot always be assumed that an at-risk person will behave rationally. But the court cannot adopt the stance that any risk is unacceptable. …
(b)Judges know that people may experience suicidal ideation when confronted with criminal proceedings, which are immensely stressful, but very seldom, if ever, act upon it. The proceeding is normally the principal cause of stress, although publication identifies the proceeding with the defendant and may cause great anxiety at particular points in time.
(c)For these reasons a defendant who relies on a risk of self-harm or suicide attributable to publication of his or her name must normally point to something more than the usual feelings of anxiety and despair that may attend proceedings. It is usual to offer evidence that the defendant is psychologically troubled for other reasons and is particularly susceptible to publicity. This may be coupled with
7 Santos v R [2019] NZCA 252.
8 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614.
9 Santos v R, above n 7, at [23].
evidence that the case will attract unusually extensive or critical media publicity.
…
(f)The opinions of medical professionals deserve respect, but a court need not defer to them. It is unlikely to question an uncontradicted medical diagnosis of the defendant’s condition, but such opinions may assume that any risk is too much risk or (as in this case) urge suppression without adequately addressing alternative ways in which the risk might be managed.
(g)There normally are ways of managing the risk. Where possible, medical reports prepared to assist the courts should recommend and evaluate those options. For example, a brief period of suppression may reconcile the defendant to the inevitability of publicity after the initial shock of arrest and first appearance. Support structures can be identified and deployed. …
(Footnotes omitted).
[21] The Court then noted that in that case the psychiatrist giving evidence in support of the application had explained that publication would significantly increase the risk of suicide for the defendant, but had not addressed how the risk might be managed if suppression was refused.10 The alternative opinion that had been provided to the Court was that the risk if suppression orders were not made was moderate, and capable of being addressed by the forensic team of clinical psychologists.
[22] The difficulty here is that I have no evidence of this kind at all. I have Mr Styles’ affidavit, and documents that have been handed up by Mr Fraser, but I have no report from a psychiatrist, psychologist or other mental health professional. No one who is currently treating the appellant has given evidence. And from what I am told, the appellant is currently in institutional care.
[23] The link between the publicity associated with the conviction and the appellant’s current mental state is also not self-evident. The conviction and sentencing occurred in 2018. The appellant’s more acute mental health problems, and his admission, have occurred some three years later. There may be an inference that any further publicity will be adverse to Mr Styles’ mental health, but before the Court can grant name suppression of this kind much more concrete and persuasive evidence
10 At [24].
needs to be provided. I also note that media outlets such as Stuff can be expected to apply media standards in relation to reporting on matters having a mental health dimension.
[24] The second related concern is that there has already been publicity, including the identification of the appellant, when he was sentenced. Indeed that is part of the appellant’s concern, as he says that any online searches that are now undertaken about him now result in his conviction for this offending coming up, which significantly adversely affect him. But it is one thing to seek to make suppression orders prospectively to protect a person. It is another to obtain orders in the nature of “take down” orders, effectively to expunge publicity earlier given to a criminal proceeding when there were no orders preventing that publicity being given at the time. Any jurisdiction to make such take-down orders would at least require the existence of very persuasive evidence.
[25] For these reasons the application for name suppression is declined. The suppression orders I made at the hearing are discharged. The only suppression order that remains in effect is that made under s 205 referred to at Error! Reference source not found.–Error! Reference source not found. above.
Procedure for the appeal
[26] The hearing was also convened for the purposes of addressing the procedure for this appeal.
[27] There is an initial issue in relation to the grounds of appeal. Mr Styles pleaded guilty after receiving a sentencing indication. At that stage mental health issues were considered, and the Court received a report from Dr Barry-Walsh. There was no application for discharge without conviction at that time. Neither was there any application for name suppression.
[28] Notwithstanding those factors the appellant now seeks to appeal his conviction. I spent some time discussing them with Mr Fraser, as I was not sure I understood what the grounds of appeal being advanced were. He relied on the grounds specified in the notice of appeal, but they do not provide great clarity. For example I asked Mr Fraser
whether counsel error by counsel in the lower Court was being advanced. He said that is was not.
[29] If the appellant is to succeed with such an appeal one of the established grounds for appeal following the entry of a guilty plea will need to be established.11 If this involves alleged errors by counsel in the lower court, then the procedures involved in that kind of appeal will need to be followed.12
[30] The appellant needs to provide much greater clarity on what the grounds of appeal being pursued actually are. When discussing those with Mr Fraser he indicated that he might need to file further psychiatric evidence. In the circumstances I give the following directions:
(a)the appellant is to file and serve particularised grounds of appeal, which identify the ground for an appeal against conviction when a guilty plea has been entered that is being advanced by 4 pm 12 August;
(b)any further evidence that is being relied upon for the appeal must be filed and served by 4 pm 26 August;
(c)the parties have leave to seek a further telephone conference in relation to the appeal at that stage to deal with any further procedural issues;
(d)the appeal should otherwise be set down for hearing with the appellant’s submissions to be filed five working days before the fixture and the respondent’s submissions two working days before the fixture.
11 See Whichman v R [2018] NZCA 519 at [35]–[36].
12 See Criminal Procedure Rules 2012, r 8.7.
Cooke J
Solicitors:
Liberty Chambers, Wellington for the Appellant Crown Law, Wellington for the Respondent